Sides seek rules for Walmart remand

Tuesday, October 23, 2012

If you find land use issues intriguing, then the Dec. 10 Hood River City Council meeting may be the biggest thrill of the year.

In what is likely to be a jam-packed session, the council will decide whether or not Walmart maintains the required vested right to expand its Hood River store, based on Hood River municipal code. The same session could address an appeal on the application to build a cable park in the Nichols boat basin.

The council spent the bulk of its meeting Monday dealing with procedural issues to prepare for a hearing on a Land Use Board of Appeals remand of its December 2011 decision authorizing Walmart to expand.

The hearing will focus on a section of the city council’s decision, and questions whether or not Walmart met the requirements to maintain a vested right – a legal requirement which dictates their ability to expand.

The city council largely decided to keep the hearing as limited and narrow as possible.

Prior to deliberating on procedural issues, the county heard from attorneys representing both sides in the case, Ken Helm of Hood River Citizens for a Local Economy, and Greg Hathaway of Walmart.

The council’s job was made slightly easier right off the bat when Hathaway announced that Walmart was withdrawing a request to modify its application.

A modification request would have required a full reopening of the record, and several members, along with City Attorney Dan Kearns, said they wanted to avoid that if possible.

While that part was made easier on the council, the other requests by the attorneys were decidedly less so.

Much of the discussion focused on how much legislative history the council should look at when examining the LUBA remand.

Helm and Hood River citizen Mary Ellen Barilotti advocated for the city casting a wider net in its legislative history review, including applicable language in a section of the city’s non-conforming use code in effect in 1997, and earlier versions.

That city code language, which had applied to Walmart as a nonconforming use in its current location in 1997 read: “Nothing contained in this title shall require any change in the plans, construction, alteration or designated use of a structure for which a permit has been issued by the City and construction has commenced prior to the adoption of the ordinance codified in this title, provided the structure, if non-conforming or intended for a nonconforming use, is completed and in use within two (2) years from the time the permit is issued.”

Walmart did not take action to expand within the two-year time frame at the point when the code took effect in 1997. The code was later changed.

If it is determined that the 1997 code did apply to Walmart, and they failed to perform within the timeframe listed, then Walmart could not legally claim a vested right to build, and the city would have erred in authorizing the expansion.

The omission of a review of that code by the city staff (and the opponents of Walmart), the code’s impact on Walmart’s claimed vested right, and the applicability of the code to the city council’s decision to allow expansion, was listed as an error in the LUBA judges’ remand to the city.

Hathaway argued that the code as existed in 1997 was irrelevant to the council’s remand hearing, as the issue was not raised in open public meetings before the LUBA appeal.

Hathaway protested against opening up the process to anything that was explicitly included in the LUBA remand and that the “remand box should not be expanded any further.”

“If they haven’t raised an issue below they have waived their right to do that and they have waived their right to do that as part of the case. You can’t wait and then raise the issue at LUBA,” Hathaway said.

Helm responded to Hathaway’s protestations by saying even though the argument over language in the 1997 city code was raised late in the process, it was raised due to failings by both attorneys as well as the city attorney and city staff; and that if it had been brought up earlier in the process “we would not be here today.”

“If you read the LUBA decision you understand we raised an argument late in the process after learning that 1997 provisions of your 1997 non-conforming use code would have forbid what Walmart was proposing now,” Helm said.

“Now they come back on remand and ask you to consider an issue they never raised in the first place. She (Barliotti) said they (LUBA) never raised the 1997 code issue because the attorneys never brought it before you. I know I didn’t because it was not applicable and if Mr. Helm wanted to raise it then he should have raised it to you but he never did,” said Hathaway, whose comments followed Barilotti’s request that the city open up the legislative history even further, perhaps back to 1991.

Barliotti requested that city staff harmonize the legislative history on site plans with the non-conforming use codes which were “loosely defined” 20 years ago.

“There is another part in that legislative history that I think is important when you determine if Walmart lost its vested right, and that has to do with site plans, because I believe when you look at the municipal codes in respect to non-conforming use codes you’ll see a more stricter code in 1997 ...,” said Barliotti.

“The legislative history of preceding versions of the code and why those codes were adopted the way they were is relevant to how existing codes are applied,” said Helm.

“If at the initial hearing on this proposal – if the city planning staff, your city attorney and myself had done a better job at identifying the 1997 version of the code we wouldn’t be here,” he added.

Helm advocated for allowing additional public testimony. “I think it is more important for your public and for your citizens,” Helm said. He also asked to have the record opened for the purpose of obtaining legislative history on the city’s non-conforming use code in order to show how the city’s code had evolved and changed over time.

“We are recommending that you open the records again for the limited purpose of obtaining legislative history,” said Helm. “Legislative history can tell us a lot because it adds meaning to the words (lawyers tell you),” Helm said.

Eventually the city did decide to allow oral testimony on the issue at a Nov. 26 city council meeting. The public hearing on the LUBA remand would then be continued to Dec. 10, at which point the council will make a decision.